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Allowing bias by subcontractor could be ‘Aiding and abetting’

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in Hiring,Human Resources

If your organization hires a subcontracting firm and knows that it's discriminating against its employees, take note: You could be held liable under a rather obscure part of Pennsylvania law.

The Pennsylvania Human Relations Act (PHRA) says it’s illegal to “aid, abet, incite, compel or coerce” another person or entity in discriminatory behavior.

Note, however, that before the PHRA kicks in, there must be some relationship between the alleged discriminator and the person or entity allegedly “aiding and abetting” discrimination. It isn’t enough that the two have a contractual relationship; there must be proof that one knew (or should have known) about the discrimination and refused to do anything about it.

Recent case: James Thorpe, a black male, applied for a valet parking job at the Reading Hospital. The hospital had contracted out all parking services to a separate company, Healthcare Parking Systems of Maryland (HCP). Reading Hospital was completely unrelated to HCP.

Thorpe was interviewed by HCP but wasn’t hired. He then sued, reasoning that “Reading Hospital is very racist” since there were no black parking valets. The hospital argued it didn’t have anything to do with HCP and couldn’t be held responsible for its hiring practices.

The court looked to the PHRA’s “aiding and abetting” sections and concluded that separate entities can be liable, but only if they know or have reason to know that the company they have contracted with is violating the law. The mere existence of a contract isn’t enough. (Thorpe v. Reading Hospital, No. 06-00828, ED PA, 2006)

Final tip: This case puts Pennsylvania employers on notice that if they do find out about possible discrimination by subcontractors, they should investigate. Ignoring complaints may amount to aiding and abetting discrimination.

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